Summary
Full Decision
Arbitral Decision[1]
The Arbitrator, Dr. Sílvia Oliveira, appointed by the Deontological Council of the Administrative Arbitration Center (CAAD) to constitute the Arbitral Tribunal, which was established on 10 December 2015, with respect to the case identified above, decided as follows:
1. REPORT
1.1.
Head of the Estate of A… (hereinafter referred to as the "Claimant"), Tax Identification Number…, with tax residence at Street…, no…, in…, Valpaços, filed a request for an arbitral ruling and constitution of a single Arbitral Tribunal, on 5 October 2015, under the provisions of article 4 and number 2 of article 10 of Decree-Law no. 10/2011, of 20 January [Legal Framework for Arbitration in Tax Matters (RJAT)], in which the Tax and Customs Authority (hereinafter referred to as the "Respondent") is the respondent party.
1.2.
In the aforementioned request for an arbitral ruling, the Claimant seeks that the Arbitral Tribunal declare "(…) the collection decision (…) no. …/2015 (…) revoked (...)" and "(…) the (…) tax be annulled, as it is illegal and unjust, and is not owed by the Estate here claiming."
1.3.
The request for constitution of the Arbitral Tribunal was accepted by His Excellency the President of CAAD on 5 October 2015 and notified to the Respondent on the same date.
1.4.
Given that the Claimant did not proceed with the appointment of an arbitrator, under the provisions of article 6, number 2, letter a) of the RJAT, the undersigned was appointed as arbitrator on 23 November 2015 by the President of the Deontological Council of CAAD, and the appointment was accepted within the time limits and terms legally provided for.
1.5.
On the same date, both Parties were duly notified of this appointment and did not manifest their intention to refuse the appointment of the arbitrator, in accordance with the combined provisions of article 11, number 1, letters a) and b) of the RJAT and articles 6 and 7 of the Deontological Code.
1.6.
Thus, in accordance with the provision of letter c), of number 1, of article 11 of the RJAT, the Arbitral Tribunal was constituted on 10 December 2015, and an arbitral order was issued on 17 December 2015, to notify the Respondent to, in accordance with the provisions of article 17, number 1 of the RJAT, submit its answer within a maximum period of 30 days and, if it wished, request the production of additional evidence.
1.7.
Additionally, it was also mentioned in that arbitral order that the Respondent should remit to the Arbitral Tribunal, within the time limit for answering, a copy of the administrative file.
1.8.
On 29 January 2016, the Respondent submitted its Answer, having defended itself by objection to the effect that "(…) the disputed assessment act should be maintained in the legal order as it was issued" and, consequently, "(…) the request for an arbitral ruling should be ruled entirely groundless."
1.9.
With the Answer, the Respondent also attached the respective administrative file.
1.10.
On 4 February 2016, an arbitral order was issued requesting the Parties to pronounce themselves, within a period of five days, on the possibility:
1.10.1.
Of waiving the holding of the meeting referred to in article 18 of the RJAT, including the possibility of waiving the hearing of the witness evidence presented by the Claimant; and
1.10.2.
Of waiving the submission of arguments.
1.11.
The Parties did not pronounce themselves, within the time limit allowed, on the content of the arbitral order referred to in the previous point.
1.12.
Accordingly, the Arbitral Tribunal decided, in an order dated 2 March 2016, in accordance with the procedural principles established in article 16 of the RJAT, of the autonomy of the arbitral tribunal in the conduct of the proceedings and in the determination of rules to be observed [letter c)], of cooperation and procedural good faith [letter f)] and of the free conduct of proceedings established in article 19 and 29, number 2 of the RJAT, and also taking into account the principle of limitation of useless acts provided for in article 130 of the Code of Civil Procedure (CPC) [applicable under the provisions of article 29, number 1, letter e) of the RJAT]:
1.12.1.
To dispense with the holding of the meeting referred to in article 18 of the RJAT, including dispensing with the hearing of the witness evidence presented by the Claimant;
1.12.2.
To dispense with the submission of arguments;
1.12.3.
To set 21 March 2016 for the purpose of delivering the arbitral decision.
1.13.
In the same order, the Claimant was also warned that "until the date of delivery of the arbitral decision, it should proceed with payment of the subsequent arbitration fee, in accordance with the provisions of number 3 of article 4 of the Regulation of Costs in Arbitration Proceedings in Tax Matters and communicate such payment to CAAD."
2. CAUSE OF ACTION
2.1.
The Claimant, as Head of the Estate of A…, was notified of "(…) the Collection Decision (…) no. …/2015 (…)", and considers that such "(…) notification is characterized by complete injustice", because "through mere analysis of numbers, using consumption tables, ISP is applied to agricultural diesel used in agricultural activity immediately after the death of A…".
2.2.
It further states that "(…) it has already clarified that it proceeded as it did, upon technical indication from the agricultural services of Valpaços", "a place where it went when her husband died, and was told that it should continue as before, with nothing to change."
2.3.
Thus, the Claimant does not understand "the reason why (…) nothing should be taken into account in this situation, since whoever acts in accordance with what is communicated to them by legal bodies commits no illegality".
2.4.
In fact, the Claimant alleges that "(…) the fuels were acquired and used by the very same agricultural machines", "because all the fuel was used for the same purposes, in the same machines, by the heirs of Mr. A…".
2.5.
In the case under analysis, the Claimant understands that "(…) mere analysis of fuel supply tables is not sufficient to retroactively apply ISP", also disagreeing with the "argument raised regarding the non-transferability of the card (…)" because "(…) the norm is not provided for in these types of circumstances".
2.6.
Indeed, according to the Claimant, "the non-transferability of the card is provided for in the circumstance of loans between living persons" but the situation under analysis (transmission on death) "(…) is of such specificity that it is not regulated in the legal instrument invoked" "simply because it is a circumstance with no human intervention (…)".
2.7.
For the Claimant, "the law on this circumstance has immediate application, that is, succession takes place at the moment of death", with "everything (…) transmitted at that moment, including this position", concluding that "the normative provision invoked in the report communicated to the Estate (no. 6 of Administrative Order 117-A/2008) is not applicable, since it was not provided for that purpose".
2.8.
Thus, the Claimant concludes the arbitral request understanding that "(…) the present decision should be revoked and the aforementioned tax annulled, as it is illegal and unjust, and is not owed by the Estate here claiming".
3. ANSWER OF THE RESPONDENT
3.1.
The Respondent in its submitted answer begins by raising a preliminary matter relating to the value of the claim, because although the Claimant did not indicate the value of the claim in the initial request, "in the present case, based on the content of the notification for payment of the tax and other elements in the administrative file, it is possible to assign a value to the claim which (…) should correspond to the amount of ISP to be paid for the introduction into consumption of the colored and marked diesel in question, which (…) appears in the CAAD form relating to the initial request, as the economic value of the claim."
3.2.
Subsequently, the Respondent defended itself by objection, having, in summary, presented the following arguments:
3.3.
It begins by stating that "on 10.04.2015, by order of the Director of Customs of …, a Customs Inspection Action was determined against the entity A…, Head of the undivided estate (…)", and "this Action (Process OI2015…) was intended to ascertain the legality of the use of electronic cards after the death of the holder and beneficiary of the scheme, A…, within the scope of ISP - Colored and Marked Diesel (CMD), in the period from 06.10.2011 to 25.05.2015 (…)", having been completed on 18.06.2015 and "on the same date (…) through official letter no.…, Customs of … notified the inspected entity of the draft conclusions of the report, for purposes of Prior Hearing (…)" (emphasis added).
3.4.
In this context, the Respondent understands that despite the Claimant having exercised its right of response in the Prior Hearing, "(…) it failed to alter the content of the Final Report (…), which concluded (…) the following" (emphasis added):
3.4.1.
"A… was the holder of the microchip/electronic cards nos. … and …";
3.4.2.
"The equipment authorized for the use of colored and marked diesel was the tractor, license plate …-…-…, brand … and model …";
3.4.3.
"The beneficiary A… died on 23.11.2010, it being verified that, after that date and in the period between 06.10.2011 and 25.05.2015, and in his name, 5,825.40 liters of colored and marked diesel were acquired and used, using the aforementioned electronic cards, always for the benefit of the undivided estate (…)";
3.4.4.
"At the date of the start of the inspection process, the undivided estate (…) was not holder of any microchip card that would enable it to access colored and marked diesel."
3.4.5.
"The colored and marked diesel was used by the heirs in agricultural tractors owned by the author of the estate" but "(…) the tractor license plate …-…-…, brand … and model … (…) until the date of 08.06.2015, did not appear in the list of assets of the undivided estate."
3.4.6.
"The reference to the use of CMD in more than one tractor by the legal heirs, presumes the use of CMD in non-authorized equipment, given that the tractor license plate …-…-…, is only authorized for the use of this product from 2015.06.23, which means that before this date it was legally prohibited from its use."
3.5.
The Respondent continues by stating that "(…) as they constitute a violation of the legal regime applicable, namely the provision of no. 6 of Administrative Order no. 117-A/2008, of 8 February, and articles 14 and 15 of the Tax Benefits Statute, the irregularities found gave rise to the determination of an ISP amount in accordance with that established in the Special Excise Tax Code" and "(…) the Subsequent Collection Process no. … – Year 2015 (…) was established, within which the Head of the Customs Delegation of … determined that the amount owed relating to ISP, CSR, and compensatory interest be collected, in the total amount of 1,875.32 € (…)" (emphasis added).
3.6.
The Respondent argues that "as the regime of the reduced rate tax benefit for the use of colored and marked diesel in agricultural and forestry equipment provided for in (…) article 93 (…) of Part II (…) of CIEC [Special Excise Tax Code], in Administrative Order no. 117-A/2008, of 8 February, and in Administrative Order no. 361-A/2008, of 12 May, are found, and as the provisions of other devices apply regarding tax benefits, of general nature, contained in other statutes", and "as it is a tax benefit dependent on recognition consisting of the application of a reduced ISP rate to colored and marked diesel (…)", the "benefit (…) is concretized through the attribution of an electronic card to the beneficiary (…)".
3.7.
The Respondent continues by stating that "the cards (…) are personal and non-transferable, with the respective holders responsible for their regular use", "(…) they are subject, under penalty of incurring a tax infraction, to the following obligations" (emphasis added):
3.7.1.
"Notify the competent authorities of any alteration of the prerequisites of the tax benefit";
3.7.2.
"Notify other relevant alterations, particularly (…) transfer of ownership of equipment (…)";
3.7.3.
"Cooperate with the competent authorities in the carrying out of the controls that may be determined, with a view to proving the effective allocation of products to destinations or uses with tax benefit and provide all requested information elements."
3.8.
In this context, the Respondent continues, quoting the provision of article 15 of the Tax Benefits Statute (EBF), regarding its transferability, stating that:
3.8.1.
"The right to tax benefits, without prejudice to the provisions of the following numbers, is non-transferable inter vivos, being, however, transferable mortis causa if the prerequisites of the benefit are met in the transferee, unless it is of strictly personal nature."
3.8.2.
"(…)".
3.8.3.
"It is equally transferable inter vivos, with authorization of the Minister of Finance, the right to tax benefits granted, by act or tax contract, to natural or legal persons, provided that the prerequisites of the benefit are verified in the transferee and that the protection of public interests pursued by it is ensured."
3.9.
Thus, the Respondent argues that "(…) in accordance with article 14 of the EBF, the extinction of tax benefits has as a consequence the automatic reposition of the default taxation", so "(…) the tax benefit in question, in addition to depending always on an act of recognition by the tax administration, after request by the interested party, is also a conditional benefit, that is, which presupposes that the prerequisites on which the recognition of the benefit was based are necessarily maintained."
3.10.
Thus, for the Respondent, "the death of the holder of the benefit puts at risk all the prerequisites on which the granting of that benefit was based" "due to the benefit being granted intuiti personae" and thus, according to the Respondent, "non-transferable either inter vivos or mortis causa, which is due to the very nature of the benefit" (emphasis added).
3.11.
Thus, according to the Respondent, "in view of the personal nature of this tax benefit (…) upon the death of the beneficiary, the card in question should have been returned after the cessation of the prerequisites of the benefit, which did not occur, with the same continuing to be used."
3.12.
Now, "having been verified (…) that the application for the benefit of acquisition and use of CMD, in the name of Head of the Estate of A…, only entered the Ministry of Agriculture (…) on the 17.06.2015 (…)", "those microchip cards were illegally used by an operator/user not holding a tax benefit."
3.13.
The Respondent reiterates that "the violation of the prerequisites of the tax benefit in question does not consist solely of the use of colored and marked diesel for a purpose different from that declared, but also of the use of colored and marked diesel in non-authorized equipment and the use of colored and marked diesel without prior recognition of the tax benefit", so "as the quality of passive subject of the tax obligation applies to anyone bound to satisfy the respective tax obligation, as it is an undivided estate, all heirs who accepted the estate will be responsible for the ISP debt, and (…) the debt should be assumed by the now Claimant (…)" (emphasis added).
3.14.
In these terms, the Respondent concludes that "by force of the aforementioned number 1 of article 14 of the EBF as to the automatic reposition of default taxation in case of extinction of tax benefits, the disputed assessment act should be maintained in the legal order (…)", so "(…) the request for an arbitral ruling should be ruled entirely groundless."
4. PRELIMINARY MATTERS
4.1.
The request for an arbitral ruling is timely, as it was submitted within the time limit provided in letter a), of number 1, of article 10 of the RJAT.
4.2.
The parties have legal personality and capacity, are legitimate as to the request for an arbitral ruling and are duly represented, in accordance with the provisions of articles 4 and 10 of the RJAT and article 1 of Administrative Order no. 112-A/2011, of 22 March.
4.3.
The Tribunal is regularly constituted, in accordance with article 2, number 1, letter a), articles 5 and 6, all of the RJAT and is competent regarding the appreciation of the request for an arbitral ruling formulated by the Claimant.
4.4.
With respect to the value of the request for an arbitral ruling (preliminary matter raised by the Respondent), although it was not quantified and indicated in the submitted request, the value of EUR 1,877.12, relating to the collection of ISP in dispute, was considered for purposes of calculating the initial arbitration fee paid by the Claimant.
4.5.
Indeed, taking into account:
4.5.1.
The request formulated by the Claimant [that the Tribunal declare "(…) the collection decision (…) no.…/2015 (…) revoked (...)" and "(…) the (…) tax be annulled, as it is illegal and unjust (…)"], as identified in point 1.2., above;
4.5.2.
The provision of article 296 of the CPC that "every claim must be assigned a certain value, expressed in legal currency, which represents the immediate economic benefit of the claim" which, in the case under analysis, in accordance with the provision of article 297, number 1 of the CPC, should correspond to the sum sought to be obtained (emphasis added);
This Tribunal agrees, in accordance with the provision of article 306, number 2 of the CPC, with the value assigned to the case of EUR 1,877.12, [with the normal implications for the amount of final costs of the case (the amount and responsibility for which, in accordance with the provision of article 4, number 4 of the Regulation of Costs in Arbitration Proceedings, will be fixed in the Decision chapter)].
4.6.
No nullities were identified in the proceedings.
4.7.
There are no exceptions or other preliminary matters that need to be considered, so nothing prevents the examination of the merits of the case.
5. FACTS
Proven Facts
5.1.
The Claimant was subject to an inspection action inserted in the Local Program of Customs of …with the no. OI2015…, with the objective of ascertaining compliance with the legal provisions relating to the use of colored and marked diesel (as per copy of the report that is an integral part of the administrative file attached to the case by the Respondent).
5.2.
The scope of the aforementioned inspection action, which began on 25 May 2015, is ISP – CMD, whose refuelings were registered on cards no. … and…, in the period from 6 October 2011 to 25 May 2015 (as per copy of the report that is an integral part of the administrative file attached to the case by the Respondent).
5.3.
The cards identified in the previous point, held by the taxpayer A… (deceased on 23 November 2010), materialize the tax benefit of the reduction of the rate of Tax on Petroleum and Energy Products (TPEP), applied to CMD, enabling its holder, within the scope of his agricultural activity, to acquire and consume CMD in the equipment for which this benefit has been recognized (as per copy of the report that is an integral part of the administrative file attached to the case by the Respondent).
5.4.
The equipment authorized for the use of this product was identified as being a tractor brand …, model …, license plate …-…-… (as per copy of the report that is an integral part of the administrative file attached to the case by the Respondent).
5.5.
The tractor referred to in the previous point did not form part of the undivided estate that resulted from the death of A…, and this situation was regularized on 8 June 2015 (as per copy of the report that is an integral part of the administrative file attached to the case by the Respondent).
5.6.
In the scope of the aforementioned inspection action, it was verified that in the period from 6 October 2011 to 25 May 2015 (that is, on dates after the death of the holder of the cards identified above in point 5.2.) the same were used in refueling the tractor license plate …-…-…, which is only authorized for the use of this product since 23 June 2015 (as per copy of the report that is an integral part of the administrative file attached to the case by the Respondent and not contested by the Claimant).
5.7.
As a result of the inspection action referred to above, the Claimant was notified, through Official Letter no.…, of 18 June 2015 (sent on 22 June 2015, by registered mail with return receipt no. RF … PT), of the draft conclusions of the inspection report, under which the Respondent understood that "with the death of the beneficiary (…) the subjective conditions of the exemption that the cards (…) materialize cease to be met, so the CMD acquired after his death does not meet the prerequisites of prior recognition of the tax benefit (…)", concluding that the Claimant "(…) is responsible for the settlement of tax calculated in accordance with the difference between the level of taxation applicable to gasoline and the reduced rate applicable to colored and marked diesel", in the amount of EUR 1,682.42, corresponding to ISP (EUR 1,170.32) and CSR (EUR 512.10) owed (as per copy of the report that is an integral part of the administrative file attached to the case by the Respondent) (emphasis added).
5.8.
Additionally, the Claimant was also notified to exercise its right of hearing, orally or in writing, within a period of 15 days (as per copy of the report that is an integral part of the administrative file attached to the case by the Respondent).
5.9.
The Claimant came to exercise, on 1 July 2015, the right of prior hearing, in writing, reiterating the arguments already presented (as per copy of the prior hearing that is an integral part of the administrative file attached to the case by the Respondent).[2]
5.10.
The Claimant was notified through Official Letter no.…, of 12 August 2015, of the content of the final report regarding the inspection action identified in point 5.1., above, having the same reiterated the arguments presented by the Respondent in the draft report and, thus, concluded that there was "(…) an irregular introduction into consumption (…)", so the amount of tax settled and indicated above was maintained (see point 5.7.) (as per copy of the report that is an integral part of the administrative file attached to the case by the Respondent).
5.11.
Thus, the Claimant was notified, through Official Letter no.…, of 21 August 2015 (sent on 27 August 2015, by registered mail with return receipt no. RF … PT), to proceed with the payment, within a period of 15 days, of the amount of EUR 1,877.12, determined in the "Subsequent Collection Process no. …/2015" (as per copy of the official letter that is an integral part of the administrative file attached to the case by the Respondent) and whose breakdown of values is as follows:
5.11.1.
ISP - EUR 1,170.32;
5.11.2.
CSR (total) - EUR 512.10;
5.11.3.
Compensatory interest - EUR 192.90;
5.11.4.
Customs form - EUR 1.80.
5.12.
No other facts capable of affecting the decision on the merits of the claim were proven.
Unproven Facts
5.13.
No evidence was obtained as to payment, by the Claimant, of the amount of EUR 1,877.12, relating to the value of the settlement in dispute, object of this request for an arbitral ruling.
5.14.
No proof was obtained that the Claimant made, after the death of A… on 23 November 2010, the communication of the alteration of the prerequisites of the tax benefit underlying the CMD refueling cards (cards no. … and …), as alleged in the request (points 6, 7 and 12).
5.15.
No other facts were verified as unproven with relevance to the arbitral decision.
6. LEGAL GROUNDS
6.1.
Within the scope of the arbitral process under analysis, the central issue regarding which there are absolutely opposed understandings between the Claimant and the Respondent consists of knowing whether or not there is a (i)legality in the substantive law of the assessment act practiced by Customs of … (Customs Delegation of…), relating to the amount of EUR 1,877.12, taking particular account of the answers to be given to the following questions to be decided:
6.1.1.
Is the use of CMD a tax benefit dependent on recognition which, because of its strictly personal nature, is non-transferable mortis causa?
6.1.2.
Does the use of CMD without prior recognition of the tax benefit constitute a violation of the prerequisites of the tax benefit, constituting grounds for the revocation of its authorization, implying the collection of the tax that becomes due?
6.1.3.
Does the acquisition and consumption of CMD by non-holders of electronic cards constitute a violation of the law, embodying an irregular introduction into consumption, being subject to the sanctions provided in the General Regime of Tax Infractions (RGIT)?
6.2.
Indeed, while on the one hand the Claimant understands that the tax benefit associated with electronic cards for CMD refueling is transferable mortis causa, because this transmission "(…) is of such specificity that it is not regulated in the legal instrument invoked", on the other hand, the Claimant understands that, as such cards are personal and non-transferable, the benefits associated with them are non-transferable mortis causa, so that, upon the death of the beneficiary, the cards in question should have been returned.
General Framework
6.3.
Under the provisions of the Special Excise Tax Code (CIEC) "the regime of special taxes on consumption harmonized by Community Law is established, such being considered (…)", namely, "the tax on petroleum and energy products (ISP)", with such provisions applied "in the national territory (…)".[3]
6.4.
In accordance with the provision of article 2 of the CIEC Code (in force at the date of the facts and at present), "special taxes on consumption are subject to the principle of equivalence, seeking to burden taxpayers to the extent of the costs they cause in the domains of the environment and public health, in implementation of a general rule of tax equality."
6.5.
Thus, in accordance with the provision of article 88, number 1, letter a) of the CIEC Code (in force at the date of the facts and at present), "are subject to the tax on petroleum and energy products (…)" namely, "petroleum and energy products" being that, under letter a), of number 2 of the same article, it is provided that "(…) are qualified as petroleum and energy products", namely, "products covered by codes 2701, 2702 and 2704 to 2715."
6.6.
Regarding who is covered, in accordance with the provision of the Code referred to above, "are (…) passive subjects (…) natural persons (…) who introduce into consumption (...) or use products subject to tax (…)".
Tax Benefit Associated with CMD
6.7.
In accordance with the provision of article 93, number 1 of the CIEC Code (in force at the date of the facts and at present) "are taxed with reduced rates (…) diesel (…) and petroleum colored and marked with the additives defined by administrative order (…)", being that colored and marked diesel can only be consumed by agricultural machines listed in number 3 of that article, namely, by "(…) agricultural tractors" (emphasis added).
6.8.
Notwithstanding the regime provided for, in the matter of ISP, in the CIEC Code, these norms are complemented by others contained, namely, in Administrative Order no. 117-A/2008, of 8 February and Administrative Order no. 361-A/2008, of 12 May [both approved while the previous CIEC Code was still in force but kept in force when the new Code was approved, by force of article 5 of Decree-Law no. 73/2010, of 21 June (statute which approved this latter Code)].
6.9.
In this conformity, in accordance with the provision of Administrative Order no. 117-A/2008, of 8 February [which "regulates the formalities and procedures applicable to the recognition and control of exemptions and reduced rates of the tax on petroleum and energy products (ISP) provided for (…) in (…)" CIEC Code], may "benefit from exemption or the application of a reduced rate of tax natural persons (…) who, demonstrably, use petroleum and energy products subject to ISP in the activities or in the equipment (…)" provided for in number 1 of that Administrative Order, "provided they meet the following conditions" (emphasis added):
6.9.1.
"That activity is duly declared, in accordance with applicable tax legislation, except when exempted by law or by the nature of the exemption";
6.9.2.
"Have their tax and social contribution situation regularized";
6.9.3.
"Have fulfilled their declarative obligations in the field of income taxes and the value added tax."
6.10.
In this context, "applications for exemption or reduction of the tax rate must be accompanied by a photocopy (…)" of the tax identification card and the document licensing the activity exercised (when required), "without prejudice to other documentation considered necessary."
6.11.
In accordance with the provision of article 55 of Administrative Order no. 117-A/2008 (as amended by Administrative Order no. 206/2014, of 8 October), the application of a reduced ISP rate to the equipment provided for in letters a) and c) of number 3 of article 93 of the CIEC Code includes the uses designated, namely, by agricultural equipment.
6.12.
Thus, in accordance with the provision of article 5 of Administrative Order no. 117-A/2008, of 8 February, "the tax benefits concretized through the use of colored and marked diesel are carried out, mandatorily, through the use of a microchip card" ([4]), "which is issued by the Directorate-General of Agriculture and Rural Development (DGARD) and sent to applicants by the entity competent for the recognition of the tax benefit in question" (emphasis added).[5]
6.13.
Being the cards referred to in the previous number personal and non-transferable, the respective holders will be responsible for their regular use, and are also subject (under penalty of incurring a tax infraction), to the following obligations (emphasis added):
a) "Notify the competent authorities of any alteration of the prerequisites of the tax benefit;
b) Notify other relevant alterations, particularly alteration of location of installations or of authorized equipment, transfer of ownership of equipment as well as the cession or substitution thereof;
c) Cooperate with the competent authorities in the carrying out of the controls that may be determined, with a view to proving the effective allocation of products to destinations or uses with tax benefit and provide all requested information elements."
6.14.
Additionally, in accordance with the provision of article 8 of Administrative Order no. 117-A/2008, "are also obligated to return the microchip card in case of cessation of the prerequisites of the benefit, within a maximum period of five business days" and to "notify any situation of loss or anomaly in the microchip card attributed" (emphasis added).[6]
6.15.
The notifications referred to in the previous points "(…) must be carried out in writing, preferably by electronic mail, within a maximum period of five business days."
6.16.
On the other hand, "the tax benefits referred to in the administrative order identified above are subject to periodic re-evaluation by the competent authorities, with a view to ascertaining the maintenance of the respective prerequisites and compliance with the other conditions required under applicable legislation" (emphasis added).
6.17.
In these terms, taking into account that "colored and marked diesel can only be acquired by holders of the electronic card established for purposes of control of its allocation to the destinations referred to (…)", the acquisition of CMD in violation of the rules provided for in article 93 of the CIEC Code is subject to the sanctions provided in the RGIT and in special legislation.
6.18.
In this context, constitute grounds for the revocation of the authorization of the tax benefit (without prejudice to the institution of proceedings for tax infraction in the terms provided for in the RGIT), the violation of the prerequisites of the benefit as well as non-observance attributable to the beneficiary of the conditions required in article 2 of Administrative Order no. 117-A/2008, and in case of violation of the prerequisites of the tax benefit, the tax that becomes due is also collected.
6.19.
For purposes of the provision in the previous point, it is considered that there is violation of the prerequisites of the tax benefit, particularly, in case of (emphasis added)
a) "Use of products without prior recognition of the tax benefit;
b) Use of authorized products for a purpose different from that declared;
c) Use of products in non-authorized equipment."
Tax Benefits Regime in General
6.20.
The Portuguese tax system has a set of tax benefits, with a view to promoting or encouraging certain operations, economic sectors, activities, regions or economic agents, thus playing a relevant role in the development of our country, and some of these alternatives are contained in the Tax Benefits Statute (EBF), published by Decree-Law no. 215/89 of 1 July, a statute that has undergone various updates.
6.21.
Thus, as regards the regime of tax benefits proper, it must first be taken into account the definition of tax benefit (which translates into an incentive of an economic, social or cultural nature), representing all advantages attributed to passive subjects, with a view to the realization of a certain behavior.
6.22.
Indeed, the granting of a tax benefit opposes the application of the normative system, as it translates into a fact preventing the birth of the tax obligation.
6.23.
Because it may be a matter of an economic, social or cultural incentive, pursuing purposes different from those that govern the default taxation system, tax benefits must be characterized by their exceptional nature and by extrafiscal grounds:
6.23.1.
By their exceptional nature, because they impede normal taxation;
6.23.2.
By extrafiscal grounds, to the extent that, if there existed a fiscal ground, it should be incorporated in the default taxation system itself.
6.24.
As the act of taxation is an act of public interest, it must be recognized that the creation of a tax benefit will alter the balance in the distribution of the tax burden by treating citizens unequally, in light of the criterion of contributive capacity, making the application of the principle of equality impossible.[7] [8]
6.25.
In these terms, it can be affirmed that tax benefits enclose three requirements:[9]
a) First, they constitute a derogation from the general rules of taxation;
b) Secondly, they pursue a relevant social and economic objective that determines the derogation from the general rule referred to in the previous point;
c) And, finally, they attribute, as a consequence, an advantage to the taxpayers who benefit from them.
6.26.
Now, in accordance with the provision of article 2 of the EBF, "are considered tax benefits the measures of exceptional character instituted for the protection of relevant extrafiscal public interests that are superior to those of taxation itself which they prevent", being considered as tax benefits, namely, "(…) reductions in rates (…)" (emphasis added).
6.27.
In this sense, article 2, number 1 of the EBF considers the concept of tax benefit as being a fact preventing the constitution of the tax relationship, so the norms that govern its creation, and which legitimize its granting, are:
6.27.1.
Legally special and,
6.27.2.
Factually exceptional, as they are grounded in public, extrafiscal, but constitutionally relevant interests.
6.28.
Thus, the breaking of the essential nucleus of taxation passes, firstly, through a derogation to the principle of contributive capacity ([10]) because, in accordance with this principle, taxation would be practiced in accordance with the subjective situation of each taxpayer, that is, fair tax is that which guarantees material equality in the distribution of tax burdens.
6.29.
However, contributive capacity relates to the criterion of distribution of revenues intended to finance direct public expenditures (and not those intended for the pursuit of concrete extrafiscal social purposes), which will mean that the distribution of revenues would not be possible if there were not the possibility of modeling the content of the principle of contributive capacity.
6.30.
Contributive capacity, as defined, requires not only the personalization of taxation but also that the legislator direct the tax at the three relevant manifestations of wealth that indicate the economic capacity of the taxpayer and that constitute the tax base, that is, the wealth it earns (income), the wealth it possesses (assets) and the wealth it spends (consumption).[11]
6.31.
Although the principle of contributive capacity does not consume the principle of tax equality, it nevertheless constitutes one of its strongest expressions or manifestations, as well as a shaping element of the idea of Material Rule of Law.
6.32.
In these terms, the principle of contributive capacity comprises two dimensions, which are that of presupposition and limit of taxation: as a presupposition or source of taxation, the principle of contributive capacity is based on the economic strength of the taxpayer expressed in the ownership or use of wealth; already as a limit or measure value of the tax, it prohibits the legislator from adopting ordering elements incidental on the constitutive elements of the tax, contrary to the requirements of fiscal justice enunciated by the same principle.[12]
6.33.
On the other hand, tax benefits can be distinguished as conditional benefits, temporary benefits and permanent benefits.
6.34.
Conditional tax benefits are those whose effectiveness is dependent on the verification of certain secondary accessory prerequisites (which are its "conditio juris"), being thus distinguished, from so-called pure benefits whose effectiveness is not dependent on the verification of any accessory presupposition.[13]
6.35.
In conditional benefits, the condition can take one of two forms, either suspensive or resolutive:
6.35.1.
The condition is said to be suspensive when the benefit is granted after certain accessory prerequisites are verified and,
6.35.2.
Is considered resolutive when the benefit is granted but its effectiveness is dependent on the verification of the prerequisites of the benefit, whose non-verification determines its lapse.
6.36.
Regarding temporary benefits, as the name indicates, are granted for a limited period fixed in the law, as opposed to permanent benefits granted for the future without predetermined duration.[14] [15]
6.37.
As temporary benefits are created with the objective of producing certain results of relevant public interest, permanent benefits, given their long duration, have as a drawback, the possibility of, once the public interest pursued with their granting is exceeded, they become favors or tax privileges.
6.38.
Also in this context, it is important to proceed to the distinction by which tax benefits can be considered static or dynamic:
6.38.1.
The former are guided toward situations that have already occurred (or that not yet occurring totally), are not aimed (at least not directly), at incentivizing or stimulating, but only benefiting (for reasons of higher order and of nature of general defense policy, economic, religious, social, cultural, etc);
6.38.2.
By contrast, dynamic incentives aim to incentivize or stimulate certain activities, by establishing a relationship between the advantages granted and the activities stimulated in terms of cause and effect.
6.39.
Thus, while in static tax benefits the cause of the benefit is the situation or activity itself, in dynamic tax benefits the cause is related to the future adoption of the benefit behavior or future exercise of the activity that is intended to be fostered.
6.40.
As established by article 12 of the EBF, "the right to tax benefits must refer to the date of verification of the respective prerequisites, even if it is dependent on recognition (…)" (emphasis added).
6.41.
It is inferred, from this transcription, that, as a general rule, the right to tax benefits is constituted with the verification of the respective prerequisites.
6.42.
However, just as the tax obligation is not due at the exact moment it is verified, it is understandable that if a tax benefit is not duly and timely requested, it does not produce its effects at the exact moment of the verification of the facts.[16]
6.43.
In this matter, in accordance with the provision of article 5 of the EBF, tax benefits may be "automatic and dependent on recognition", being that "the former result directly and immediately from the law, the latter presuppose one or more acts of subsequent recognition" (emphasis added).
6.44.
In fact, as regards the granting of tax benefits, the law distinguishes two types of recognition:
6.44.1.
In automatic tax benefits, recognition results directly and immediately from the law, operating upon the simple verification of the respective factual prerequisites, not requiring any act of the tax administration;
6.44.2.
In tax benefits dependent on recognition, this can be carried out by administrative act (in which case we have tax benefits dependent on unilateral recognition) or through contract (in which case we have tax benefits dependent on bilateral recognition).
6.45.
For purposes of the above described, article 65 of the Code of Tax Procedure and Process (CPPT) provides that "the recognition of tax benefits depends on the initiative of the interested parties, by request directed specifically to that end, the calculation, when mandatory, of the requested benefit and proof of verification of the prerequisites of recognition in accordance with the law" (emphasis added).
6.46.
In accordance with the provision of article 7 of the EBF, "all persons, natural or legal, of public or private law, to whom tax benefits are granted, automatic or dependent on recognition, are subject to inspection by the Tax and Customs Authority (…) for control of verification of the prerequisites of the respective tax benefits and compliance with obligations imposed on holders of the right to benefits" (emphasis added).[17]
6.47.
As to the form of extinction of tax benefits, in general terms, in accordance with the provision of article 14 of the EBF, the same can be caused by lapse, by alienation of goods for purposes different from those for which the benefit was granted, by revocation of the administrative act of granting and by waiver of the benefits.
6.48.
In any case, in accordance with the provision of the article referred to in the previous point, "the extinction of tax benefits has as a consequence the automatic reposition of the default taxation" (emphasis added).
6.49.
Thus, under the provision of article 9 of the EBF, "persons holding the right to tax benefits are obligated to declare, within a period of 30 days, that the factual or legal situation on which the benefit was based has ceased, except when that cessation is of official knowledge" (emphasis added).
6.50.
On the other hand, under the provision of article 15 of the EBF, "the right to tax benefits (…) is non-transferable inter vivos, being, however, transferable mortis causa if the prerequisites of the benefit are verified in the transferee, unless it is of strictly personal nature" (emphasis added).
6.51.
Indeed, number 1 of article 15 of the EBF establishes two principles:
6.51.1.
On the one hand, the principle of non-transferability of the right to tax benefits "inter vivos" and,
6.51.2.
On the other, the principle of transferability of the same right "mortis causa", with the condition that in the transferee the prerequisites of the benefit are verified and it is not of strictly personal nature.[18]
6.52.
In fact, because the tax benefit is granted "intuiti personae" it should be considered non-transferable, either "inter vivos" or "mortis causa."
6.53.
However, this rule of non-transferability has two exceptions, provided for in article 15, number 2 and number 3 of the EBF, the first of automatic application and the second dependent on authorization of the Minister of Finance.[19]
6.54.
In accordance with the provision of article 14 of the EBF, as referred to above, "the extinction of tax benefits has as a consequence the automatic reposition of the default taxation."
Framework of the Case under Analysis
6.55.
As set out above, the application of a reduced ISP rate to natural persons who demonstrably use CMD in agricultural activity and in the equipment provided for, depends on the verification of a presupposition and is associated with two conditions.
6.56.
As for the presupposition (which frames the real and profound sense of the application of a reduced rate provided for in article 55 of Administrative Order no. 117-A/2008 and in article 93, number 1 of the CIEC Code), which is to encourage and stimulate agricultural activity, it will be said that the same, in view of that petroleum and energy products (in this case, CMD) are only used in certain activities and equipment, assumes an absolute and inescapable essentiality, that is, it is a presupposition of indispensable verification for the rate reduction to be concretized.
6.57.
On the other hand, the referred conditions, unlike the objective character of the mentioned presupposition, have a character inclination of subjective character.
6.58.
Indeed, the rate reduction in question depends, first of all, as provided for in article 56 of Administrative Order no. 117-A/2008, on a request for recognition of the tax benefit presented to the regional directorates of agriculture and fisheries.
6.59.
In these terms, it is a recognition that, relating to the reduction of the ISP rate applicable, cannot fail to take into account the status of the purchaser and his legal conditions to be able to benefit from this rate reduction.
6.60.
Thus, such recognition must take into account not only the persons (natural or legal) to whom the tax benefit will be granted, but also the identification of the equipment to be refueled with CMD, as well as proof of the respective ownership or legitimate possession.
6.61.
The aforementioned conditions are, to a large extent, intended to facilitate inspection and ensure the efficient control of the use of electronic cards referred to above (in point 5.2.) being thus inscribed in the range of instruments oriented toward the prevention of fiscal-customs fraud, at the disposal of the Tax and Customs Authority.
6.62.
In fact, the aforementioned conditions have underlying special concerns in the sense of preventing petroleum and energy products, object of rate reduction, from being directed to purposes different from those that sustain them.
6.63.
That is, what is intended to be ensured is that the use of these products is concretized in the activities legally listed, through the equipment identified because if this does not occur, the respective tax will be due (as a result of the difference between the level of taxation in ISP and CSR applicable to road gasoline and the ISP rate applicable to CMD), calculated in accordance with the normal rates of ISP corresponding.
6.64.
In summary, the legislative intent underlying the rules relating to the aforementioned conditions is to ensure efficient inspection of the use of electronic cards, thereby avoiding abusive and privileged exploitation of a tax benefit, outside the profound reasons and purposes of economic-social interest that lie behind the granting of that same benefit.
6.65.
Still on the matter of the first of the conditions referred to above in point 6.57 and following (that is, the one respecting recognition of the tax benefit of the reduced rate applicable to CMD), provided for in article 56 of Administrative Order no. 117-A/2008, it will be appropriate to recall the provision of article 5 of the EBF (referring to automatic tax benefits and dependent on recognition), under the terms of which it is established in its number 2 that "the recognition of tax benefits can take place by administrative act or by agreement between the Administration and the interested parties, having, in both cases, a merely declarative effect, except when the law provides otherwise" (emphasis added).
6.66.
On the other hand, in accordance with the provision of article 12 of the EBF (relating to the constitution of the right to tax benefits), "the right to tax benefits must refer to the date of verification of the respective prerequisites, even if it is dependent on declarative recognition by the tax administration or on agreement between it and the benefited person (…)" so that, because the law also does not provide otherwise here, the tax benefit in question, in the case under analysis (the reduction of the ISP rate applicable in the activity and in the agricultural equipment identified in the case), is born at the moment when the respective prerequisites are verified, which were concretized with the submission of the recognition request, with the effects of that act reporting to that same date.
6.67.
Now, having been attributed the tax benefit to taxpayer A…, given that the said benefit is of "intuitu personae" nature, with his death the same will not be transmitted "mortis causa" to his heirs.[20]
6.68.
In this context, in accordance with the provision of article 2025 of the Civil Code, "do not constitute the object of succession the legal relationships that must be extinguished by death of the respective holder, by reason of their nature or by force of law."
6.69.
Thus, in view of the above exposition, the answer to the question formulated above in point 6.1.1. will be affirmative, that the use of CMD is a tax benefit dependent on recognition which, because of its strictly personal nature, is non-transferable mortis causa.
6.70.
In consequence, the use of the electronic refueling cards no. … and no.…, previously belonging to A… and used, after his death (on 23 November 2010), without prior recognition of new tax benefit, constitutes a violation of the prerequisites of the tax benefit associated with CMD, constituting grounds for the lapse of the previous authorization granted, thus implying the collection of ISP due as a result of the difference between the level of taxation (ISP and CSR) applicable to road gasoline and the ISP rate applicable to CMD (because the extinction of the tax benefit has as a consequence the automatic reposition of the default taxation), being affirmative the answer to be given to the question formulated above in point 6.1.2.
6.71.
Taking into account that the application for the benefit of acquisition and use of CMD in the name of Head of the Estate of A… only entered, in the Ministry of Agriculture – Regional Directorate of Agriculture and Fisheries of the North, on 17 June 2015, that is, after the period covered by the inspection action carried out (from 06 October 2011 to 25 May 2015) had elapsed, the acquisition and consumption of CMD effected during this period was practiced by a natural person not holder of a valid electronic card, which constitutes a violation of the law, embodied in the irregular introduction of CMD into consumption being subject to the sanctions provided in the RGIT, being thus affirmative the answer to be given to the question formulated in point 6.1.3., above.
6.72.
In these terms, it is understood that there is no illegality whatsoever in the act of ISP collection, practiced by Customs of…, object of the present request for an arbitral ruling.
Responsibility for Payment of Arbitration Costs
6.73.
In general terms, in accordance with the provision of article 527, number 1 of the CPC (ex vi 29, number 1, letter e) of the RJAT), the Party that caused them shall be condemned in costs or, if there is no winning of the action, whoever from the proceedings derived benefit.
6.74.
In this context, number 2 of the said article specifies the expression "caused them", according to the principle of default, understanding that the losing party causes the costs of the proceedings, in the proportion to which it is.[21]
6.75.
In these terms, in consonance with the analysis carried out above and the conclusions obtained above in points 6.69 to 6.72., the responsibility in terms of arbitration costs should be entirely imputed to the Claimant.
7. DECISION
7.1.
In harmony with the provision of article 22, number 4, of the RJAT, "the arbitral decision issued by the arbitral tribunal includes the fixing of the amount and distribution among the parties of the costs directly resulting from the arbitral process."
7.2.
In the case under analysis, taking into account the above exposition, the principle of proportionality imposes that the entire responsibility for costs be attributed to the Claimant, in accordance with the provision of article 12, number 2 of the RJAT and article 4, number 4 of the Regulation of Costs in Arbitration Proceedings.
7.3.
In these terms, taking into account the conclusions defined in the Previous Chapter, this Arbitral Tribunal decided:
7.3.1.
To rule the request for an arbitral ruling presented by the Claimant groundless, with the assessment act of ISP object of the request remaining in the legal order, with the consequences arising from it;
7.3.2.
To condemn the Claimant to payment of the costs of the present proceedings.
Value of the case: In conformity with the provision of articles 306, number 2 of the CPC, article 97-A, number 1 of the CPPT and in article 3, number 2 of the Regulation of Costs in Tax Arbitration Proceedings the case is assigned the value of EUR 1,877.12.
Under the provision of Table I of the Regulation of Costs of Tax Arbitration Proceedings, the value of the costs of the Arbitral Process is fixed at EUR 306.00, at the expense of the Claimant, in accordance with article 22, number 4 of the RJAT.
Let notification be made.
Lisbon, 21 March 2016
The Arbitrator
Sílvia Oliveira
[1] The writing of this decision is governed by the spelling prior to the Orthographic Agreement of 1990, except transcriptions made.
[2] Sent on 30 June 2015, by registered mail (no. RD…PT).
[3] Code approved by Decree-Law no. 73/2010, of 21 June and successively amended by the following statutes: Law no. 55-A/2010, of 31 December, Law no. 64-B/2011, of 30 December, Law no. 14-A/2012, of 30 March, Law no. 20/2012, of 14 May, Law no. 66-B/2012, of 31 December, Law no. 51/2013, of 24 July, Law no. 83-C/2013, of 31 December, Law no. 75-A/2014, of 30 September, Law no. 82-B/2014, of 31 December and Law no. 82-D/2014, of 31 December.
[4] By Administrative Order no. 206/2014, of 8 October, the references contained in Administrative Order no. 117-A/2008 of 8 February (amended by Administrative Order no. 762/2010, of 20 August), to the "microchip card" are considered to be made to the "electronic card" (designation also contained in number 5 of article 93 of the CIEC Code).
[5] In a brief historical overview, it should be noted that, in the early nineties of the last century, the State decided to grant the agricultural sector a tax benefit translated in a lower rate of ISP to be applied to fuel consumed by agricultural equipment. As at that time there was only one gasoline in the market (which is what is now designated as road diesel) the quantities to be consumed by each farmer with tax benefit were calculated, for each year, by a Directorate-General (or equivalent) of the Ministry of Agriculture (now designated as DGARD) based on objective elements, having a ceiling ("plafond") that could not be exceeded annually. Thus, in practical terms, the tax benefit was granted to the respective holders (normally farmers) at the moment of diesel acquisition, paying these a price per liter lower than they would pay if no such tax benefit existed.
The application for the tax benefit, filed in the Ministry of Agriculture, when successfully concretized gave rise to the issuance of a "Multibanco type electronic card" in which was registered the maximum quantity of diesel to be acquired by each farmer with tax benefit. Thus, the concept of an electronic control system for diesel sold with tax benefit to the agricultural sector (currently CMD) is based on electronic cards (which were initially designated as microchip cards) and respective secret codes (issued by DGARD to beneficiary economic operators) which allowed, until 30 September 1997, for the holder to acquire diesel with tax benefit, up to the quantity inscribed on the card, in any Refueling Station.
However, in compliance with certain community determinations (cf. Directive 95/60/CE, of the Council, of 27/11), it became permitted for farmers to acquire with tax benefit all the quantities of product they need (elimination of inhibitive "plafonds") and to improve the control system of uses exempted from the product, making revert to the agricultural sector the efficiency gains achieved, from 1 October 1997. Thus, the attribution of the tax benefit to diesel used in agriculture came to be carried out through the use of a product proper, designated by CMD, which has the same engine properties as road diesel but having, however, a different color (colored) and a chemical substance that remains in it and identifies it (marker) with the aim of preventing fraud (in this context, see COSTA, Maria Manuela, in "The role of marking and coloring of petroleum products in combating tax evasion", Customs – Customs Magazine, no. 41/42, December 1996, page 31/34).
Given that, in fiscal terms, CMD is a proper product, when its declaration for consumption is made it is taxed with the ISP rate that is its own and the beneficiaries can acquire in authorized Refueling Stations, at the respective price (which is much lower than road diesel) all the quantities they need, with the annual reference period of the indicative plafonds inscribed on electronic cards continuing (in this context, see FREITAS, Carlos Luís Sabino de Sousa and others, in work cited, Customs – Customs Magazine, no. 41/42, December 1996, pages 22/26).
However, given the sensitivity to tax fraud of the new product (CMD), the previous control system based on electronic cards (with secret code known only to its holder) and TPA/POS type terminals for recording sales was maintained.
[6] By Administrative Order no. 206/2014, of 8 October, the references contained in Administrative Order no. 117-A/2008 of 8 February, amended by Administrative Order no. 762/2010, of 20 August, to the "microchip card" are considered to be made to the "electronic card."
[7] According to Costa A., Rainha J. and Pereira M. [in "Tax Benefits in Portugal: Economic-social Objectives - systematization by activities, legislation", Coimbra, Livraria Almedina (1977)], tax benefits are instruments of policy aimed at certain economic and social objectives, it being noted that the tax benefit exists whenever an entity or activity covered by the incidence of a tax is in a more favorable situation relative to those subject to the default tax regime.
[8] The principle of contributive capacity is characterized consensually by doctrine and by the jurisprudence of the Constitutional Court as a structural principle of the tax system that expresses and concretizes the principle of tax equality and that has implicit seat in the "Tax Constitution", by force of the combination of the provision of articles 103° and 104° of the CRP [Portuguese Constitution].
[9] In this sense, Freitas, M. [in "Tax incentives and the financing of private investment, influence of taxation on the form of financing of companies", Lisbon, Center for Tax Studies, (1980)], recognizes that there are three requirements in tax benefits: (i) being a derogation from taxation rules, (ii) constituting an advantage for taxpayers and (iii) having a relevant economic or social objective.
[10] According to Azevedo, R. (in "Tax Benefits Statute, III Post-Graduation Course in Tax Law", Faculty of Law of the University of Porto), it is implicit in the concept of tax benefit a nature of exceptional character, and that exception constitutes, however, an advantage (or relief) in favor of a certain entity, activity or situation.
[11] In this sense, see Decision of the Constitutional Court issued in the scope of Process no. 1067/06, of 29 December.
[12] In this matter, see Decision referred to in the previous footnote.
[13] Quoting Alberto Xavier (in "Tax Law, FDL Manuals", Lisbon, 1974), "(…) conditional benefits translate into subordinating the right to the benefit to counterparties of public interest in the form of duties or burdens imposed on beneficiaries (…)".
[14] For Alberto Xavier, in "Tax Law, FDL Manuals", Lisbon, 1974, "(…) the grant of a temporary exemption generates for the subject who benefits from it an expectation of maintenance of the benefit throughout the period to which it relates – which must be protected in the name of the principle of legal security – through the recognition of the right that that benefit is not suppressed or suspended during the time of validity of the exemption (…)". Thus, still according to the same author, "(…) it is a case of necessary recognition of acquired rights, which must lead to that any hypotheses of derogation of the norms in which the exemption was granted does not involve the loss of the aforementioned rights, which can be invoked against the state while the initially predicted period of validity lasts."
[15] In this sense, as stated by Nuno Sá Gomes (in "General Theory of Tax Benefits", Notebooks of Science and Tax Technique no. 165, Lisbon, Center for Tax Studies, 1991, pg. 145) "tax benefits are said to be permanent when they are established for the future, without predetermined duration; they are said to be temporary when the law fixes a time limit to the duration of the benefit."
[16] Indeed, the process of recognition of tax benefits depends on the connected and continuous analysis of various parameters, among them, the type of procedure involved, the investigation of the causes that led to the impediment of recognition of the benefit, the vicissitudes resulting from the attribution of the tax benefit and the verification of the extinction of the right to the benefit.
[17] Amended by Law no. 64/2015, of 1 July (in the previous version, the reference to the "Tax and Customs Authority" was made to the "Directorate-General of Taxes").
[18] As will be the case, namely, for tax benefits granted to retirees, emigrants or the disabled.
[19] Note that, as to this second derogation of the rule of non-transferability, this is merely apparent, when it does not assume the character mortis causa, because it makes the transferability inter vivos dependent on the grant of a new benefit, through a recognition process.
[20] And much less to legitimize the refueling, by the heirs, of the agricultural tractor license plate …-…-…, in the period from 6 October 2011 to 25 May 2015, with the use of the electronic cards already identified (see points 5.2 and 5.6., above).
[21] Thus, the Parties should be condemned taking into account the principle of proportionality, that is, being attributed to them responsibility for costs, in the proportion in which they are the losing party.
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